Here’s what a “digital Miranda warning” might look like

Anyone who has ever watched an American crime movie or television show can practically recite the Miranda warning by heart, even if they don’t know its official name.

You have the right to remain
silent. Anything that you say or do can be used against you. You have
the right to an attorney. If you cannot afford one, one will be provided
to you. Do you understand these rights as I have read them to you?

The basic idea behind the Miranda warning is
to provide someone being arrested with information about their
constitutional rights against compelled self-incrimination (Fifth Amendment) during a custodial situation and to reassure them of their right to an attorney (Sixth Amendment).

This warning stems from a 1966 Supreme Court case, Miranda v. Arizona,
where a kidnapping and rape suspect, Ernesto Miranda, confessed to the
crime without the benefit of a lawyer and without being fully informed
of his rights to not self-incriminate. Today, all American police
officers must recite some version of the Miranda warning while taking
someone into custody due to the Supreme Court’s landmark 5-4 decision.

In the half-century since the Miranda
decision, a lot has changed. For one, many of us carry smartphones
containing a rich trove of personal data in our pockets that might
interest law enforcement. In fact, it wasn’t until 2014 that police
officers nationwide were specifically ordered not to search people’s
phones without a warrant during an arrest.

In 1966, no one envisioned a world where we
carried powerful computers in our pockets, so it's time for an update to
the Miranda warning. A modernized version would need to make clear not
only that anyone can refuse to speak, but that speaking might
involve inputting a passcode to open up a phone. After speaking with
several legal experts, here’s our "digital Miranda," based on our best
understanding of current law.

You have the right to remain
silent. This right includes declining to provide information that does
not require speaking, such as entering a passcode to unlock a digital
device, like a smartphone. Anything that you say or do can be used
against you. Any data retrieved from your device can also be used
against you. You have the right to an attorney. If you cannot afford
one, one will be provided to you. Do you understand these rights as I
have read them to you?

We recognize that this revised Miranda warning
has no actual force of law. It’s simply meant as a way to think about
encryption, constitutional rights, and contemporary interactions with
police.

Remember, you only get Mirandized during a “custodial situation”

Back in 2014, the court unanimously found in Riley v. California that law enforcement must get a warrant before searching mobile phones during an arrest. Prior to Riley,
at least some law enforcement officials were searching some suspects’
phones on the grounds that data on the phones could be used to aid their
investigations.

Writing for a rare unanimous court, Chief
Justice John Roberts argued dismissively against the government, saying
that searching a phone was not at all like searching a wallet. “That is
like saying a ride on horseback is materially indistinguishable from a
flight to the moon,” he concluded.

Riley
showed that the Supreme Court has started to think in fundamentally new
ways about privacy in relation to the digital devices that are almost
always with us. So, then, we wondered, would most people even think to
challenge law enforcement when asked to unlock their device, whether
during an arrest, or otherwise?

The officer, Sean Harrington, found semi-nude
pictures on the woman’s phone, which he then sent on to himself and
shared with his buddies. (Harrington has since left the CHP, was
prosecuted, took a plea deal, and is currently on probation.)

We guess that most people wouldn’t know about Riley,
nor many of their other constitutional rights and how they apply in the
modern world. Most people probably would follow whatever instructions,
whether legal or not, given to them by an (ideally well-intentioned)
officer of the law. (To be clear, we’ve yet to find an example where
evidence was tossed in a case because an officer blatantly ignored Riley.)

When in doubt, ask for a lawyer and stay quiet

One of the key elements of understanding post-Miranda criminal procedure is that suspects don’t always have to be read their rights. Miranda only kicks in during what’s called a “custodial” situation, typically an arrest. (A 2009 article from PoliceOne.com describes “how to talk to suspects without Mirandizing.”)

When we asked around, Orin Kerr, a law professor at George Washington University, was quick to point out that there is a post-Miranda Supreme Court decision that involves what’s known as a “consent search.” In this 1973 decision, in a case known as Schneckloth v. Bustamonte,
the court found that a search is still allowed where consent is
granted, even if the defendant is not expressly informed of his or her
constitutional rights to refuse such a search.

In that case, Sunnyvale, California, Police
Officer James Rand pulled over a car containing six people at 2:40am on a
traffic stop for a broken tail light. When Office Rand asked the men to
produce identification, only one, Joe Alcala, complied. Rand asked him
if he could search the car, and Alcala agreed. The search yielded stolen
checks in the car. One of the passengers, Robert Bustamante, was
eventually charged with possessing stolen checks. The men challenged the
search, and eventually, the Supreme Court found that the men were under
no legal obligation to consent to a search. Moreover, the officer did
not have to inform the men of their rights until one of them had been
arrested.

Similarly, the woman who had the unfortunate
interaction with the CHP officer in 2014 was under no obligation to
unlock her phone, much less hand it over. Harrington didn’t have to read
“Jane Doe” a Miranda warning—she was not under arrest. As many cops
know, criminals often will still talk even after they are Mirandized.

“The nice thing about Miranda is that it doesn’t require [police] to say too much,” Mark Jaffe,
a criminal defense lawyer who specializes in computer crimes, told Ars.
(Jaffe has represented defendants in cases that Ars has written about,
including Matthew Keys and Deric Lostutter.) Jaffe explained that many
law enforcement officers want a clear, bright line like Miranda, as to
what is acceptable in certain situations.

But what about a scenario where law
enforcement simply comes knocking at your door, asking that you help
out? What rights do you have in such a non-custodial setting?

In February 2016, a woman in Glendale, California, was ordered
to depress her fingerprint on a seized iPhone. Months later, in May
2016, federal law enforcement officials, also in Los Angeles County,
were successful in getting judicial approval for two highly unusual searches
of a seized smartphone at two different Southern California homes, one
in Lancaster and one in West Covina, about 90 miles away. The signed
warrants allowed the authorities to force a resident reasonably believed
to be a user to press their fingerprints on the phone to see if it
would unlock. (Under iOS and Android, fingerprints as passcodes only
work for 48 hours, after that timeframe, the regular passcode is
required. Court records show that the warrants were presumably executed
within that 48-hour window.)

While there is no evidence that any of the
residents attempted to challenge this order in court, it seems that
someone could have. Presumably a person could have refused, possibly
risking contempt of court and even the use of physical force to get a
fingerprint onto the phone.

“You shouldn’t resist a police order, you
should lodge your dissent, and you should ask and clarify that they’re
asking you to do it,” Alex Abdo,
an attorney with the American Civil Liberties Union, told Ars. “But you
should comply—as a lawyer that’s the advice you’re going to have to
give.”

Kerr didn’t think that a Lancaster-style
situation would be considered custodial, and so wouldn’t trigger
Miranda. In other words, given the court’s holding in Schneckloth, our revised Miranda warning wouldn’t matter anyway.

This seems reasonable—there are plenty of
situations where many people might want to be helpful to police. Plus,
we generally want police to be able to solve crimes. But not everyone
may be so forthcoming or trusting of police.

Jaffe even proposed a short verbal warning
that law enforcement could use as a Miranda-style warning in
non-custodial situations: “I would like to search your car/house/phone.
Please understand I don’t have a warrant to do so.”

Here’s what a “digital Miranda warning” might look like
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